For better, for worse, richer, or poorer, New York has joined the other 49 states in enacting no-fault divorce, effective last month. The only basis for divorce now is "irretrievable breakdown of the marriage" for at least six months.
While the new Domestic Relations law provides no definition of "irretrievable breakdown," in the Uniform Marriage & Divorce Act, it meant "No reasonable prospect of reconciliation." To avoid the possibility of one spouse obtaining a divorce -- or even remarrying -- before the couple's economic relationship is determined, the new law says, "No judgment of divorce shall be granted ... unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce."
The Real Issues
As contemporary realities have increasingly made fault obsolete, most divorce cases have come to be about money, property and children and not about who is legally at fault. It is uncommon for one spouse to attempt to hold the other hostage in a failed marriage, though it sometimes happens. New York State had already taken fault out of the equationin determining monetary and property issues. Other than in a few exceptional cases, there was little harm to a defendant who was accused of, say, adultery or abandonment.
Under the old divorce law, fault was often fabricated and testimony perjured, usually with the knowledge of all concerned. Either the husband or the wife would take the witness stand and swear that the other party wrongfully refused to have "marital relations," left the marital home, or acted in a cruel manner, which constituted unhealthy and unsafe behavior when described in some detail. The defendant would have an opportunity to contest the charges, but typically did not because he or she also wanted the divorce, or at least did not want to contest it. Occasionally one spouse resisted divorce and might even be successful in showing that the fault allegations were untrue, or couldn't be proved, and the marriage would go on.
Until the 1970s, the only basis for divorce in New York was adultery. Then came fault grounds that included adultery, but also cruelty, abandonment, a separation agreement (filed with the county clerk, initially for two years and later reduced to one year), court ordered separation and, finally, imprisonment of one spouse for three years or more. One of those had to be proved. When adultery was the only possibility, one spouse might leave the state, relocate to Nevada for six weeks to establish residence and obtain a divorce there. Others went to Mexico, Haiti or the Dominican Republic for "quickie divorces," which New York had to recognize. Or private investigators, armed with cameras, would catch the unfaithful partner in a hotel room with someone other than the spouse. Now, it's goodbye to all that.
As the issue has been debated in the legislature and elsewhere over the past several years, many women and women's organizations opposed no fault divorce. They theorized that if a husband could get an immediate divorce and even remarry, the wife would lose out financially. To prevent that under the old system, judges had generally preferred not to sign off on the divorce until support and equitable distribution were decided. Those opposed to no-fault were successful until this year.
Many lawyers and judges agree that, since the decision to award the divorce is such a small part of the overall proceedings compared to the economic issues, taking the grounds for fault out of the picture will not significantly affect legal billing and other costs of divorce. Other divorce lawyers, however, supported the change in law even though they said it would reduce their income.
One major change, though, could allow lawyers' fees to rise. There is now a presumption, though it can be contested, that fees for lawyers and experts shall be paid by the richer spouse in order to insure that the parties are adequately represented. This is expected to be of great help to wives who do not have the money to pay retainer fees and on-going legal bills.
Gaps in the Law
Lawyers and judges who have studied the new laws, which apply only in Supreme Court, which has exclusive jurisdiction over divorce, and not in Family Court, all seem to agree that the legislature will have to revisit the new statutes.
To take another example, what if one party wants to avoid divorce because selling the marital home in the current economy would be unwise? There does not appear to be a way to prevent the divorce.
Problems are anticipated in the new laws surrounding spousal maintenance. As to provisions regarding the support of the non-monied spouse and dependent children, specific formulas have been enacted for spousal support (still often referred to by some as alimony). Previously a judge determined these amounts. Now, the statute distinguishes between a payor (the monied spouse) earning less than $500,000 a year, and those above "the cap." In New York City, particularly in Manhattan, that is not so unusual an income.
Where the payor's income is under $500,000, the mathematical formula for temporary support at the commencement of an action is the lesser of 30 percent of the payor's income minus 20% of the payee's income, or 40 percent of the sum of the two incomes minus the payee's income.
While everybody is subject to the same formulas, any amounts over $500,000 are distributed by the judge applying more subjective factors. They could include transference of property to keep it out of eequitable distribution, future earning capacity of the parties, need for further education and access to health insurance. Also, the judge may consider the existence and duration of a pre-marital joint household -- a factor that will be interesting because it gives weight to the idea that there is life before marriage, when the issue being dealt with is about life after marriage.
The factors for the court to consider in deviating from the mathematical formula are slightly different in cases involving less than $500,000 and those going above the cap. But among the nearly 20 factors are present and future earning capacity, need for education or training, standard of living, wasteful dissipation of marital assets, medical insurance, tax consequences.
If the income of the payor (usually the high-income husband) is based on salary, documented by a W-2 form, then the number is a known factor. Under both the old and new law the problem arises when income and assets can be easily hidden by the spouse who is self-employed or in a cash business. The court may consider factors outside the mathematics of the formula, for example, imputed income, where the monied spouse says he earns X, but the court concludes that with two Escalades in the driveway, he is clearly earning more than he is disclosing.
The statute calls for a worksheet to calculate the percentage of income the more affluent spouse will pay to the other. No one knows, in figuring the percentage of income to be paid, whether the spousal maintenance should be subtracted from gross income first or the child support. The law offers no guidance as to whether subtractions are to be made from gross income to child support first, off the top, to arrive at the amount of support to the spouse or if is it the other way around.
Another problem the lawyers see is that the formulas are used to set temporary award, not in calculating "final" or so-called permanent awards, which are not really permanent. Yet at the initial stage -- before discovery -- the judge will not know the couples true income and other circumstances. The temporary awards could become permanent even though they were based on inadequate information.
"It won't work. Most decisions are not going to apply the formula; in practice it will rarely be applied" for higher income people, said Anne Peyton Bryant, an attorney in the office of Raoul Felder and Partners, P.C./ "Motions for temporary maintenance for high income people will be decided more on the basis of exceptions than the rules or the mathematical formulas If income is below the cap, the formula will work for them."
As for child support, the court can review the amount previously ordered when there has been a change in either parent's income of 15 income up or down, or support was last reviewed three or more years before. It would appear that other significant changes in circumstances could be brought before a judge. Custody remains unchanged and is still governed by the best interests of the child.
There is much disagreement about how much will actually change under the new divorce law and how it will all work, but that won't be known until decisions start coming out of the courts.
Emily Jane Goodman is a New York State Supreme Court justice